Pflugerville

Gov. Greg Abbott this week signed a bill into law that limits the scope of a controversial anti-Israel boycott law, just weeks after a federal judge temporarily blocked its enforcement in an ongoing First Amendment lawsuit.

The 2017 law — which seeks to combat the Boycotts, Divestments and Sanctions movement, an international protest over Israel’s treatment of Palestinians — prohibits state agencies from investing in and contracting with companies that boycott Israel. It also requires anyone contracting with the state to pledge in writing that it will not boycott Israel.

The changes Abbott signed into law Tuesday make it only applicable to contracts of at least $100,000 with companies with 10 or more full-time employees. Legislators who support the law have said they never intended for it to impact individuals or small businesses.

Texas Attorney General Ken Paxton, who had appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit, did not waste time in filing a motion to dismiss the federal lawsuit brought by several Texas contractors who claimed it violated their right to free speech.

In the motion filed Wednesday, Paxton argued that “this legislative enactment is exactly the kind of development that the Fifth Circuit has recognized will render a case moot.”

ACLU of Texas spokeswoman Imelda Mejia said the agency, which is representing some of the plaintiffs in the suit, said the agency is “analyzing the new law and its possible implications on our case.”

[…]

Federal judges have struck down laws in Arizona and Kansas and upheld one in Arkansas; all are on appeal but the Kansas law.

There, after the Kansas Legislature made nearly identical changes to those signed by Abbott on Tuesday, the American Civil Liberties Union, lacking an affected plaintiff, agreed to dismiss its lawsuit.

See here for the background. Given that the lawsuit in question involved an individual who would no longer be affected by the law, it probably is the case that a motion to dismiss would succeed. That said – and here I put on my I Am Not A Lawyer hat – I don’t think the change to the law fixes the underlying constitutional problem. We’ll see if the court agrees.

A federal court today ruled that a Texas law that requires government contractors to certify that they are not engaged in boycotts of Israel or companies that do business with Israel is unconstitutional. The judge ruled that the law, HB 89, which went into effect in 2017 violates the First Amendment’s protection against government intrusion into political speech and expression.

“Today’s ruling is a victory for the free speech rights of all Texans,” said Tommy Buser-Clancy, staff attorney for the ACLU of Texas, who argued the motion to block the law in court. “The right to boycott is deeply ingrained in American tradition, from our nation’s founding to today. The state cannot dictate the views of its own citizens on the Israel/Palestine conflict – or any issue – by preventing them from exercising their First Amendment right to boycott.”

“We applaud this decision, though nothing about it surprises us; in its decision the court has affirmed its understanding that this law was intended to chill the expression of personal opinion,” stated Terri Burke, executive director of the ACLU of Texas. “By any name, that’s free speech and free speech is the north star of our democracy. It’s foundational, and this decision underlines that no issue of importance can be addressed if the speech about it is stymied, or worse, silenced.”

The ACLU of Texas filed its lawsuit challenging the law on behalf of four Texans who were forced to choose between signing away their right to boycott or forgoing job opportunities and losing income. Those plaintiffs are represented by attorneys from the ACLU of Texas, the ACLU Speech Privacy & Technology Project, and Kevin Dubose of Alexander Dubose Jefferson & Townsend LLP in Houston.

“I’m very happy that the judge has decided to support our right to hold our own political beliefs and express them as we see fit,” said John Pluecker, a plaintiff in the ACLU of Texas lawsuit. “This ruling goes beyond just the plaintiffs – this law needed to be challenged for everyone. People in Texas need to know that our ability to earn our livelihoods won’t be threatened by the state because of our political positions.”

The first paragraph in that press release is inaccurate. This was not a final ruling, it was a ruling on a motion for a temporary injunction, as well as a ruling on motions to dismiss by the defendants. The court granted the motion for the injunction and enjoined the state from enforcing HB89, while denying the motions to dismiss. I noted this lawsuit in passing in this post about the Texas-versus-AirBnB matter. This NYT profile of plaintiff Bahia Amawi has some good information if you want more. A law like this just seems unconstitutional on its face – it restricts speech in a clear and direct manner – but as we know by now, the federal courts can be a strange place. Just keep this law in mind the next time you hear Greg Abbott or someone like him prattle on about supposed efforts to curb “free speech” on college campuses. See the Chron and the Trib for more.

Texas is adding short-term-rental site Airbnb to a list of companies that cannot receive state investments because it disallows Israeli-owned rentals in the disputed West Bank.

Airbnb is the only American-based company on Texas’ anti-Israel boycott list, which includes a Norwegian financial services group, a British wholesale co-op and a Norwegian insurance company.

Texas is making it “very clear that our state stands with Israel and its people against those wishing to undermine Israel’s economy and the wellbeing of its people,” said a statement from state Comptroller Glenn Hegar’s office.

In November, Airbnb said it would remove about 200 listings in Israeli settlements in the West Bank. It cited a variety of factors for its decision, including whether listings inside an occupied territory had a direct connection to a larger regional dispute.

“We unequivocally reject and oppose the BDS movement and are disappointed by the decision,” Airbnb said in a statement. “There are over 20,000 Airbnb hosts in Israel who open their doors and showcase the best of Israeli hospitality to guests from around the world.”

In addition to the West Bank, Airbnb also said it has removed listings in the disputed territories of South Ossetia and Abkhazia.

Airbnb has about 20,000 Israeli hosts who’ve welcomed more than 1 million visitors, including 4,700 Texans in 2018, the company said.

Texas’ move was praised by Christians United For Israel, the public policy arm of the nation’s largest pro-Israel organization. It likened the so-called Boycott, Divestment and Sanctions movement, which seeks to “end international support for Israel’s suppression of Palestinians,” to “terrorists” and “hostile nations.”

[…]

Democratic critics of laws cracking down on the Boycott, Divestment and Sanctions movement are increasingly skeptical of Israel’s policies and see such laws as an infringement on free speech. In January, Florida added Airbnb to a list of companies that it defines as boycotting Israel. The same month, a bill to crack down on the BDS movement was blocked by Democrats in the Senate.

The backlash against Airbnb comes as the company is reportedly preparing for an IPO sometime in 2019.

I don’t want to get too deep into the weeds here, so let me sum up: The Lege passed a law in 2017 that created this policy and led to AirBnB’s blacklisting. The push for this has largely come from the Christian far-right fringe, with radical clerics like John Hagee in San Antonio as the main cheerleaders. The author of that bill, Rep. Phil King, has filed another bill that intends to clarify that the law applies to companies and not individuals. One possible reason for that is that there has already been a lawsuit filed, by a speech pathologist in Pflugerville who lost her job with Pflugerville ISD over her support for BDS. The current law is broad enough that it may well be vulnerable to litigation on free speech grounds. AirBnB has 90 days to respond to the Comptroller’s actions, so if a lawsuit is to come of this, it’ll happen after that. Got it? Good.

I don’t know about elsewhere, but all eyes remain on Austin around here as the legislative season goes into overtime. There are no Austin songs on this list, but there is a song about a suburb just north of Austin.

One of my classmates at Trinity was one of the Pflugers of Pflugerville. Every time I attended a Lounge Lizards show I was tempted to mention that to the band afterward, but never got around to it. I guess I wasn’t sure how to continue the conversation after that opener. What cities are you singing about this week?

Leaders of two Christian groups want City Council to stop extending benefits to domestic partners of city employees, now that the state attorney general has called the benefits unconstitutional.

City officials reject the demand, at least for now.

Pastor Gerald Ripley of Voices for Marriage and Philip Sevilla of Texas Leadership Coalition made the request Wednesday with backing from a few sign-carrying supporters at City Hall.

Attorney General Greg Abbott issued an opinion April 29 stating cities that offer marriage benefits to employees’ same-sex partners are violating the Texas Constitution. San Antonio has done so since 2011, at an annual cost then estimated at $300,000.

Ripley and Sevilla also voiced opposition to Councilman Diego Bernal’s proposal to update the city’s anti-discrimination policies by adding protections for sexual orientation and gender identity. Further, Ripley and Sevilla oppose funding a city liaison to the gay community. The city’s Governance Committee takes up Bernal’s proposals on Tuesday.

Ripley demanded the domestic partner benefits policy be reversed by June 30. “Lawsuits will be filed if necessary,” he said.

“We cannot allow this in San Antonio. We are not San Francisco,” Sevilla said.

City attorney Mike Bernard said the city won’t change its policy while the nation’s highest court weighs two cases that could impact Abbott’s opinion. Rulings could come in a few weeks, he said.
“We’re not going to do anything until the U.S. Supreme Court rules,” he said Wednesday.

Abbott issued his opinion back in April. He stated in his opinion that Texas’ double secret illegal anti-gay marriage constitutional amendment didn’t necessarily bar cities and ISDs and what have you from offering benefits to the unmarried partners of employees, they just couldn’t do it in a way that made it look like they were equating those not-married relationships with marriage. Perhaps because of that wiggle room, or just perhaps because they thought Abbott was being more political than analytical, the cities that have offered domestic partnership benefits have basically ignored Abbott’s opinion so far. On top of that, the voters in Pflugerville re-elected the two trustees of their school board that supported its domestic partnership policy that led to Abbott’s opinion, defeating two candidates that had targeted them over this. One way or another this will ultimately be decided in a court, whether or not SCOTUS upholds or throws out DOMA. The next step will be when one of the anti-equality groups finds a plaintiff to file a suit against their city or ISD. Stay tuned.

Attorney General Greg Abbott’s opinion [last] week, while not binding, is the latest of several challenges to same-sex benefits across the country that so far have had mixed results in the courts and prompted changes after officials in other states took action. In Texas, local governments from El Paso to San Antonio and north to Dallas County have their legal departments reviewing their benefits plans but don’t appear ready to budge yet – noting that their policies don’t address issues such as marriage or gender.

“It’s a benefits package that top companies in the area offer to their employees,” said Clay Jenkins, the top administrative official for Dallas County, which has a lesbian sheriff. “It is not only the right thing to do but also allows us to attract top talent so we can continue to have success.”

The cities of Austin, El Paso and Fort Worth already offer some benefits to domestic partners, while Pflugerville, outside Austin, became the state’s first school district to extend similar benefits.

“If our policy violates the law, we’ll change it. But I’d conclude we are not doing that,” said Samuel T. Biscoe, Travis County’s top administrative official. “Legally, we are in good shape.”

Fort Worth spokesman Bill Begley said the city does not anticipate any problems to come from Abbott’s opinion. “Our domestic partner policy does not say anything about marriage or gender.”

See here for the background. As noted, Abbott’s opinion is not legally binding, it’s his opinion as to how a judge would rule. Someone will have to sue in order to get a result that does have the force of law. At least one such lawsuit is in the works in El Paso, by one of the leading homophobes there. Of course, it’s possible that by the time this gets to the point of a legal decision here we may have an opinion from the Supreme Court on the constitutionality of DOMA, and who knows how that could scramble things. This ain’t over yet, not by a longshot.

The state Constitution prohibits government entities from recognizing domestic partnerships and offering insurance benefits to those couples, Texas Attorney General Greg Abbott wrote in an opinion on Monday.

In the nonbinding opinion, Abbott determined that local jurisdictions that offer such benefits “have created and recognized something” — domestic partnerships — “not established by Texas law.”

“A court is likely to conclude that the domestic partnership legal status about which you inquire is ‘similar to marriage’ and therefore barred” by the state Constitution, he wrote.

The opinion was a response to a question asked by Sen. Dan Patrick, R-Houston, who had raised concerns about the Pflugerville school district, as well as the cities of El Paso, Austin and Fort Worth, extending such benefits to domestic partners.

“The voters of the state of Texas decided overwhelmingly that marriage is between one man and one woman in 2005,” Patrick said in a statement responding to Abbott’s opinion. “This opinion clearly outlines that cities, counties and school districts cannot subvert the will of Texans.”

You can read the opinion here. I called this back in November when Patrick asked for the opinion, not that this is anything to be proud of. A few thoughts:

– Remember back in 2005 when those of us who opposed that awful anti-gay marriage amendment pointed out that it would do a lot more than merely make gay marriage extra super illegal (since it was already illegal in Texas)? This is the sort of thing we were talking about. Legislative Democrats that still haven’t gotten on board the marriage equality bus, this is especially on you.

– Note that since the language of Abbott’s opinion is all about how the amendment banned anything “similar to marriage” and how that encompasses the term “domestic partner”, this isn’t strictly about LGBT folks. If you’re shacking up with your opposite sex partner but have chosen not to tie the knot, you’re SOL if you work for a non-federal government entity in Texas.

– Of course, if you are one half of a straight unmarried couple, you can always tie the knot to get your hands on health insurance. Gay people can get married now, too, but the state of Texas does not recognize same-sex marriages performed in other states. I’m not a lawyer, but it seems to me that this would be the seed of that law’s downfall in the event that SCOTUS throws out DOMA. If we’re lucky, this will turn out to be a massive and petty waste of time.

– If you read the opinion, Abbott tries to play a little jiujitsu by claiming that the intent of the law was not to bar cities from offering same sex partners insurance benefits, just from recognizing the status of a marriage-like thing such as a domestic partnership:

Representative Chisum’s statement simply explains that article I, section 32 does not, in his view, address whether a political subdivision may provide health benefits to the unmarried partner of an employee. The constitutional provision does, however, explicitly prohibit a political subdivision from creating or recognizing a legal status identical or similar to marriage. The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees.

For extra credit, please detail a scenario in which an insurance company would offer a benefit for the unmarried partner of an employee that didn’t require some kind of legal affirmation of a relationship between the applicant and the employee that would also be constitutionally acceptable to Greg Abbott, Dan Patrick, and other deep thinkers such as Drew Springer.

– This absolutely, positively has to be a campaign issue in 2014. I can’t emphasize this enough. People may remain largely opposed to gay marriage in Texas, but by a two to one margin they approve of either gay marriage or civil unions. I’m willing to bet a decent majority will not like this opinion. More to the point, this is an issue that Democrats can rally around, since it illustrates in unmistakeable terms a key difference between the two parties. Even better, this can be hung around Abbott’s neck. Sure, he’s only taking his best guess at how a court would decide the issue, but it’s also unambiguously the same as his own position. Let him explain why it’s technically inaccurate to say that Greg Abbott outlawed domestic partnership benefits in Texas. This goes for Drew Springer and all of his coauthors, too. This is a big deal. We need to treat it like one.

That’s all I’ve got for now, but let’s keep our eyes open for the reactions to this. Trail Blazers, Hair Balls, and BOR have more.

It means cities, counties, and school districts seeking to remain competitive with private business can offer employee benefit programs that provide health and other benefits to unmarried household members if the eligibility criteria are properly structured.

However, eligibility should not use the term “domestic partner”, or be based upon proving the existence of a “domestic partnership”, or use criteria usually associated with marriage (like current marital status, or related by a certain degree of consanguinity).

It means political subdivisions can offer employee benefit programs to unmarried household members if their eligibility criteria don’t look like marriage, or create something that resembles marriage.

I appreciate their optimism, and I hope they’re right. But I still think that the challenge of fashioning such a thing will be too daunting. I’ll be glad to be proven wrong.

UPDATE: The cities of Austin and San Antonio are not quite ready to accept Abbott’s opinion.

In the last year, two Central Texas school districts have announced plans to offer employee benefits to same-sex couples, but one bill heard Tuesday at the Capitol would make that more difficult across the state.

Pflugerville ISD announced the change last fall, making it the first district in the state to offer benefits to “dependents” who pay into their partners’ insurance plan, at no additional cost to the district or state. Austin ISD followed in late March, saying the change would cost the district $600,000 per year.

Rep. Drew Springer (R-Muenster) has a plan that’d put an end to this trend, though. He explained his proposal to the House Public Education Committee [last] Tuesday night, to withhold 7.5 percent of the state’s funding to any district offering domestic partner benefits. That, he said, should be about equal to the full cost of a district’s employee insurance program.

Springer is joined by dozens of Republican co-authors on House Bill 1568. He stressed that his bill would apply equally to same-sex and heterosexual couples, but also suggested Pflugerville and Austin’s policies were rooted in something more specific.

“I think that was around the back-side door and around the corner of trying to figure out, ‘We’re not happy with the constitutional amendment we had in 2005 that defines marriage between a man and a woman,’” Springer said.

Here’s HB 1568, which is pending in committee, and here’s more on the bill. Author Springer has meddled elsewhere this session as well. It’s a thing with him, it seems.

There is good news, however. Equality Texas reports that HB1568 was withdrawn from consideration after its hearing in the Public Education committee on Thursday the 18th. That’s great news, but a “compromise” bill is in the works, whatever that means. Even if that amounts to nothing, the number of sponsors on this bills suggests the possibility of it being attached to some other bill as an amendment later on. So be happy for now, but don’t rest easy.

Two more points to note from the story:

Springer complained that expanding these policies would be a huge extra cost to the state. “If we outlawed marriage, we could save a ton of money,” Rep. Joe Deshotel (D-Beaumont) prodded him.

Unlike married people, though, Springer noted, domestic partners can’t get divorced. He said some might take advantage of the system by staying on the same health insurance plan after they’ve split up.

“It’s very difficult to be able to police that,” Springer said. ”You have a next-door neighbor who may be 40 years, 80 years old—my next-door neighbor—and she comes to me and says, Drew, I need to get coverage, help me out here. It’s easy to make that person my partner.”

No it’s not, you idiot. In fact, most private employers that provide domestic partner coverage have a verification process to ensure brain-dead schemes like Springer’s don’t happen. Many private employers now provide this coverage to their employees, including some of the biggest companies in the world. They do it because it’s something many employees want, and they know they can’t compete for the best talent if they don’t provide such basic benefits. Fraud is unsurprisingly rare. You would think that a party that worships businesses the way the Republicans do might think twice about banning government entities from adopting some of the best practices of the free enterprise system, but I suppose there are things that are more important to them than that.

Steve Washburn, pastor at the First Baptist Church of Pflugerville, told lawmakers of the turmoil that followed the district’s decision in his otherwise civil community. “At a school board meeting in the heat of debate, I was referred to as a hate-monger,” he said. “I’ve been there for 23 years. I’m pretty highly respected. That enraged a lot of people. It hurt a lot of people’s feelings.”

Sorry, Rev. Washburn, but when you seek to deny people the same rights that you enjoy, that makes you not a nice person. I’m sorry that comes as a shock to you, and I’m sorry your feelings have been hurt by the understandably and justifiably angry reaction to your intolerance, but you really need to examine your actions and your motives if you want to be respected again. It’s entirely up to you.

I’ve noted several bills that aim to move Texas forward, however incrementally, towards greater equality. These are all good and fine things, but don’t mistake their existence for evidence that the Legislature is through trying to move us backwards.

On the right side of history

The first Texas school district to offer health insurance benefits to domestic partners is under fire from a state lawmaker, and the penalty could hit the school where it counts — in the pocketbook.

State Rep. Drew Springer, R-Muenster, filed House Bill 1568, on Wednesday. It would cut off health care funding to Texas school districts that allow employees to add a domestic partner to their health care plan, targeting Pflugerville Independent School District, which extended those benefits last year.

The board of trustees of Pflugerville ISD made history in December 2012 with a 5-1 vote, becoming the first school district in Texas to offer health benefits for domestic partners.

“I think the money we give to educate our kids should go to the kids and not trying to expand social benefits that we decided in 2005 was unconstitutional,” Springer said Thursday, referring to the Defense of Marriage Act of 2005, which defined marriage in the Texas Constitution as between one man and one woman. “We’re not taking away all the funding, just the 7.5 percent that goes to the health benefit plan.”

Opponents of Springer’s bill argue that it mischaracterizes the school’s health plan policy. “No tax dollars are being used,” said Chuck Smith, president of Equality Texas, an LGBT lobbying group. Smith said that no money is taken from funding the classroom, but rather the policy “allows access to the benefit plan, but the employee still pays the premium.”

Commuter rail between San Antonio and Georgetown, at least as a legislatively sanctioned policy goal, will have its 15th birthday this spring. The tiny government agency created later to make it a reality is almost 9 years old.

The LSTAR rail line, despite millions of dollars spent already on various studies, remains mostly an aspiration. But officials with the Lone Star Rail District quietly have made progress over the past 15 months, reaching a preliminary agreement with Union Pacific that paves the way for the freight operator to cede its existing urban railroad to the passenger rail. They also narrowed to three the possible paths for an alternate freight line east of Austin.

The district has begun a $10 million federally required environmental study on the passenger line and just received a promise of $10 million from the Capital Area Metropolitan Planning Organization for a similar study on the potential new Union Pacific freight line. Over the years, the district has received or been promised almost $60 million, mostly in federal and state grants, for various studies.

Where to find the money to build and operate the line, as always, remains the great unknown, with projected initial investment for the passenger and freight lines at $1.5 billion or more and annual operating costs in the tens of millions.

But district staff members, turning to a financing model for Central Texas toll roads over the past decade, now say they will look to the private sector to design, build, finance, operate and maintain the 115-mile, 16-station line from Georgetown, through downtown Austin, to San Antonio’s south side.

[…]

[Joe Black, Lone Star rail director and operations manager] and Alison Schulze, a district senior planner, gave some details of how the line might operate, based on studies and other research.

Initial fares likely would be about 18 cents a mile, Black said, or about $20 for a trip the length of the line. But he said that, just as with most transit agencies, there would be discounted fares for month passes.

A trip between downtown Austin to downtown San Antonio likely would take about 90 minutes — not high speed but considerably faster than Amtrak. Ridership in the beginning, the district estimates, would be 12,000 to 20,000 boardings a day, most of those would be much shorter jaunts to and from downtown Austin and San Antonio to the cities’ suburbs.

See here, here, and here for some background. The travel time makes it comparable to the Austin-Houston rail line, with the main difference from my perspective being that the Austin to San Antonio corridor makes more sense from a commuter perspective. Look at the proposed map – having places like New Braunfels and San Marcos in between, not to mention Georgetown and Pflugerville to the north, just about guarantees ridership through the day, as long as there’s some way to get where you’re going at the endpoints. By contrast, I don’t see that much demand to get to and from Hempstead or Brenham or Giddings for the Austin/Houston line. The price is attractive as well; there was no mention of that in the Austin/Houston study, but if it’s the same rate then the total would be about the same, since the line that doesn’t detour through College Station has 109 miles of track. Best guesstimate at this point for how long it will take to get up and running is five to seven years. Check back in 2017 or so and see where things stand then.

A startup solar energy company with corporate backing from India has won tax breaks from the City of Pflugerville and is near a similar agreement with the Elgin school district to build a 60-megawatt solar plant.

The plant would be large enough to provide electricity to all the homes in Pflugerville and, if it were built today, would be the largest in the United States.

RRE Austin Solar could break ground by the end of the summer on the $230 million plant on 600 or so acres of rural land about a dozen miles east of Pflugerville.

[…]

The two Indian companies want to do strictly solar farms in the United States, [Angelos Angelou, an Austin-based consultant on the project] said, with a goal of installing enough solar farms across the country in coming years to generate 600 megawatts at any given time, assuming favorable weather conditions.

Nationwide, the installed solar photovoltaic capacity in the United States is roughly 90 megawatts, according to the federal Energy Information Administration.

There’s a tax break that the startup is seeking from Travis County before it begins construction, which I figure it will probably get. What interested me in this story is that no one was quoted opposing the project. I hope it doesn’t have the same problems that the Marfa solar farm has.